Should the divorce of Ningbo's pre-marital down payment house be handled separately?

A house where one party pays a down payment before marriage, registers in his own name, and repays the loan with the joint property of the husband and wife after marriage does not need to be dealt with separately at the time of divorce, but can be resolved together in the divorce case. According to Article 78 of the (I) of the Interpretation of Marriage and Family, if the two parties fail to agree, the court may decide that the real estate belongs to the registered party, and the loan that has not yet been returned is the personal debt of the registered party, and it shall compensate the other party for the payment of the joint repayment of the loan after marriage and its corresponding appreciation.

What needs to be distinguished is the variable of parental involvement in repayment. If there is a substantial dispute over whether the nature of the parents' contribution is a gift or a loan, whether it is a gift to one of their children or between the husband and wife, and it is directly related to the rights and interests of outsiders, the court may explain this part to be dealt with separately, while the joint repayment and value-added compensation part are still concluded in the divorce case.

1. legal basis

article 1063 of the Civil Code stipulates that the premarital property of one party is the personal property of one of the spouses. Before marriage to pay the down payment on personal property and registered in their own name of the house, the corresponding share of the down payment belongs to the personal property, after marriage, the joint repayment of the loan part due to the use of the joint income of the husband and wife, into a common property nature of the rights and interests.

Article 78 of the (I) on the Interpretation of Marriage and Family gives a specific processing framework: one spouse signs a real estate sales contract before marriage, pays the down payment with personal property and borrows from the bank, and uses the joint property of the husband and wife to repay the loan after marriage. If the real estate is registered in the name of the down payment payer, the two parties shall first agree upon the divorce; if the agreement fails, the court may award the registration party and the outstanding loan as its personal debt, the amount paid by the registered party to compensate the other party for the joint repayment of the loan after marriage and the corresponding value-added of the property.

2. core points

the core of such cases in practice is to separate the individual share and the common share from the same house, and to solve the two difficult problems of calculation and proof.

1. How the amount of compensation is calculated

there is no national uniform mandatory calculation formula for joint loan repayment and its value-added compensation, and there are differences in the caliber of local courts. The common idea is to first calculate the proportion of the total amount of principal and interest of the joint loan repayment after marriage to the total cost of the purchase, and then multiply the proportion by the value added between the present value of the house and the cost of the purchase, to obtain the compensable value-added part, and finally determine the specific amount according to the principle of common property equality.

The key variables affecting the calculation include the total cost of the purchase, the amount of the down payment, the principal and interest rate of the loan, the principal and interest of the loan after marriage, the present value of the house, and the duration of the marriage. The present value of the house usually needs to be assessed or determined by reference to the transaction price of the same lot, and the choice of the point of assessment will directly change the final amount, which is recommended to be clarified as soon as possible in the lawsuit.

2. Identification of the nature of parents' participation in loan repayment

parents' participation in the repayment of loans needs to be characterized before processing. If it can be proved that it is a loan, it is a joint debt of husband and wife, which shall be borne by both parties. If it can be proved that it is a clear gift to one of his children, the rights and interests corresponding to the repayment of the loan belong to that party. If there is no clear agreement, it shall be handled in accordance with the principle of Item 4 of Paragraph 1 of Article 1062 of the Civil Code, which is usually regarded as a gift to both husband and wife.

Qualitative evidence is mainly transfer vouchers, IOUs, gift agreements, chat records and parents' statements in court. If the parents claim to be a loan but only the transfer record does not have a debit note, the court will combine the amount, time, family financial situation, whether to collect and other factors, and does not necessarily support the loan claim.

3. boundary conditions

whether it needs to be dealt with separately depends on whether the dispute involves the rights and interests of outsiders and whether the facts can be found out in this case. Joint loan repayment and value-added compensation occur between husband and wife, the facts are relatively clear, the court generally in divorce cases together. If the parental contribution has been recognized by both parties as a gift or loan, it may also be recognized in this case.

However, if the parents, as outsiders, claim independent claims and apply to participate in the proceedings, or if the house also involves other co-owners and there is a debit registration defense, the court will usually explain that the relevant dispute will be resolved separately, avoiding the direct disposition of the outsider's rights in this case. The handling of separate cases does not affect the dissolution of marriage and the handling of other property in a divorce case.

Practical Experience of 4. Lawyers

A house where one party pays a down payment before marriage, registers in his own name, and repays the loan with common income after marriage does not need to be dealt with separately when divorcing, but can be resolved together in the divorce case. Many parties are worried that they will have to file a lawsuit to divide the house first. In fact, it is not necessary to file a lawsuit to jointly repay the loan after marriage and compensate for the corresponding value-added. What really needs to be dealt with in another case is often the complex situation in which the house leads outsiders involved in the case. That is an exception, not the norm. Don't go to the procedure one more time because of hearsay.

If you want to get reasonable compensation, you must first settle the loan repayment account. It is suggested to obtain the bank repayment flow, loan contract, purchase contract and real estate registration information, distinguish the source of down payment and the amount of repayment after marriage, and try to obtain the reference basis of the present value of the house, used to calculate the value-added part. Parents should pay more attention to the situation of participating in the repayment of loans: whether the nature of the contribution is a gift or a loan, whether it is given to their own children or to both husband and wife, which directly affects the determination; If this part is controversial and involves the parents, the court may require a separate case for this part, while the joint repayment and value-added compensation can still be concluded in the divorce case.

When filing an application, the amount of joint repayment after marriage and the corresponding value-added as an independent request, if necessary, apply for the evaluation of the present value of the house, or the two sides to negotiate pricing, to avoid repeated wrangling because of different valuation caliber. In the negotiation, we should grasp a reality: the house is likely to belong to the registrar, and you are fighting for compensation rather than the property right itself, so instead of worrying about whether the house should be given to him, it is better to talk about the amount of compensation and the payment period. The agreement stipulates that the payment method and the consequences of breach of contract are clear, and if you can get it at once, don't accept long-term installments.